ATTORNEYS:On
behalf of the defendants-appellants, the cause was submitted on the briefs of
Law Roger H. Weede of Law Offices of Roger H. Weede, of Milwaukee, Linda
M. Jozefacki of Jozefacki Law Offices of Milwaukee of counsel.

Respondent

ATTORNEYS:On
behalf of the plaintiffs-respondents, the cause was submitted on the brief of
Michael J. Hicks and Cori Lynn Crogan of Hills and Hicks, S.C. of
Brookfield.

COURT OF APPEALS

DECISION

DATED AND RELEASED

June 4, 1997

NOTICE

A party may file with the Supreme Court a petition to
review an adverse decision by the Court of Appeals.See § 808.10 and rule
809.62, Stats.

This
opinion is subject to further editing. If published, the official version
will appear in the bound volume of the Official Reports.

No.96-2000

STATE OF WISCONSIN

IN COURT OF APPEALS

NORTH
RIVER INSURANCE COMPANY

and
FREEDOM PLASTICS, INC.,

Plaintiffs-Respondents,

v.

MANPOWER
TEMPORARY SERVICES

and
EMPLOYERS MUTUAL COMPANIES,

Defendants-Appellants,

ALEXANDER J. BUCZKO and
LABOR

AND REVIEW COMMISSION,

Defendants.

APPEAL
from an order of the circuit court for Waukesha County:ROGER
P. MURPHY, Judge.Reversed.

Before
Snyder, P.J., Brown and Nettesheim, JJ.

NETTESHEIM,
J.This is a worker’s compensation case.The dispute is between Manpower Temporary
Services (Manpower), the former employer of Alexander J. Buczko, and Freedom
Plastics, Inc. (Freedom), Buczko’s present employer.[1]The issue is which employer is liable for
worker’s compensation benefits paid to Buczko as a result of his carpal tunnel
syndrome.

The
Labor and Industry Review Commission (LIRC) held that Freedom is liable.The circuit court reversed, holding that
Manpower is liable.We reverse the
circuit court’s ruling and reinstate the LIRC holding.[2]

FACTS

The
facts concerning Buczko’s employment history with Manpower and Freedom are not
in dispute.We take that history
largely from the administrative law judge’s (ALJ) findings of fact which LIRC
later confirmed.

On
November 12, 1992, Buczko began work at Freedom as aManpower temporary employee.While a Manpower employee under this arrangement, Buczko performed
deburring jobs for Freedom.During this
time, Buczko experienced pain in his right wrist.However, he did not complain to anyone about this problem and he
lost no work time.

On
December 31, 1992, Buczko terminated his temporary employment status with
Manpower and became a Freedom employee.His first day of work was January 4, 1993, during which he continued his
deburring tasks.At the end of that
work day, Buczko informed Freedom’s human resources director that his fingers
and hand were numb.Freedom changed
Buczko’s job assignment to a nonrepetitive type of work.Buczko worked this different job the
following day, but the pain persisted.

The
next day, January 6, Buczko reported to work, but could not perform his
duties.This was the first time Buczko
missed any work because of this problem.As a result, Freedom referred Buczko to Dr. J. A. Austin, a company
physician at the Riverview Clinic.Buczko reported to Austin that he had experienced “increasing pain”
about a week earlier.Austin made an
initial diagnosis of carpal tunnel syndrome and indicated that surgery might be
required.This diagnosis was later
confirmed by Dr. David M. Huibregtse, another physician with the Riverview
Clinic.Surgery, in fact, was performed
on Buczko’s right wrist on January 21, 1993.

On
February 2, Huibregtse reported in response to Buczko’s attorneys that Buczko
had “significant carpal tunnel syndrome of the right hand.”He also reported that Buczko’s work at
Freedom was a substantial factor contributing to Buczko’s carpal tunnel
condition and was also a substantial factor contributing to Buczko’s disability.Huibregste confirmed these statements in a
March 3 report filed with the Worker’s Compensation Division of the Department
of Industry, Labor and Human Relations.In this document, Huibregste stated, “[Buczko’s] work performed at
Freedom Plastics on January 4, 1993 was a substantial factor contributing to
this disability and would be the last employer whose employment contributed to
the disability.”

Freedom
then sought the opinion of Dr. J. Steven Moore, an assistant professor of
occupational medicine at the Medical College of Wisconsin.After reviewing the relevant data, including
a videotape of the deburring activity, Moore opined in relevant part, “[I]t is
unlikely that Mr. Buczko’s performance of activities at work on a single day,
January 4, 1993, materially aggravated, accelerated, or precipitated a
condition that manifested a week prior.”Finally, on April 7, 1994, Huibregtse retreated somewhat from his
earlier opinion.In this report to
Freedom’s attorneys, Huibregtse stated:

If the history that you present to me is accurate I certainly
feel that the work exposure from November 19, 1992, until July [sic] 3, 1993,
was the major contributing factor to the patient’s carpal tunnel syndrome ….

Consequently I agree that the work exposure from November
19, 1992 to January 3, 1993 was the material contributory causative factor of
Mr. Buczko’s carpal tunnel syndrome.The additional day working on the same machine had minimal contribution
consequently is not a material contributory causative factor in the onset or
progression of the carpal tunnel syndrome.

The
ALJ determined that since Buczko did not experience any disability within the
meaning of the worker’s compensation law until January 4, 1993, that date was
the time of Buczko’s injury and Freedom was therefore the responsible employer.Upon further review at the instance of
Freedom, LIRC upheld the ALJ’s findings and conclusions.

Freedom
petitioned the circuit court for judicial review.In its decision reversing the LIRC holding, the court said in
relevant part:

The evidence is undisputed that Drs. Austin, Huibregtse
and Moore found the materially contributing cause occurred before
December 30, 1992 and that the one day deburring on January 4, 1993 was not a
material contributing cause of Buczko’s occupational disease ….There is no evidence this occupational
disease can occur and develop to the stage it developed in Buczko in one day,
unlike a traumatic injury ….Wisconsin law does not require one must be so disabled as to be unable
to work before an occupational disease “injury” can occur and develop, later
resulting in wage loss, and, the employee entitled to some Workers Compensation
benefits.

Manpower
appeals.

DISCUSSION

Standard of Review

We
review LIRC’s decision, not that of the circuit court.SeeLanghus v. LIRC,
206 Wis.2d 493, 500, 557 N.W.2d 450, 454 (Ct. App. 1996).Neither we, nor the circuit court, weighs
the evidence or passes upon the credibility of the witnesses.See id.LIRC’S findings of fact will be upheld on
appeal if they are supported by credible and substantial evidence in the
record.See id.; see
also § 102.23(6),Stats.

We are not bound by LIRC’s legal
conclusions when the case is one of first impression.SeeLanghus, 206 Wis.2d at 501, 557 N.W.2d
at 454.However, we defer to LIRC’s
interpretation of a statute when:(1)
the agency was charged by the legislature with the duty of administering the
statute; (2) the interpretation of the agency is one of longstanding; (3) the
agency employed its expertise or specialized knowledge in forming the
interpretation; and (4) the agency’s interpretation will provide uniformity and
consistency in the application of the statute.Seeid.The
legal principles which are at issue in this case, particularly the
interpretation and application of § 102.01(2)(g), Stats., are not new to LIRC (or its predecessor, the
Industrial Commission).In fact, one of
the cases which the parties cite and debate dates back to 1953.SeeGreen Bay Drop Forge Co. v.
Industrial Comm’n, 265 Wis. 38, 60 N.W.2d 409, 61 N.W.2d 847
(1953).Thus, we will accord the proper
deference to LIRC’s legal conclusions in this case. With these principles in
mind, we now address the relevant law and facts.

The Law and Facts

Section
102.03(1), Stats., states that an
employer is liable for worker’s compensation benefits when:(1) an employee sustains an injury, (2) at
the time of injury both the employer and employee are subject to the
worker’s compensation law, and (3) at the time of injury the employee is
performing services related to the employment.Thus, “time of injury” is an important factor in determining liability.

Section
102.01(2)(g), Stats., speaks to
this factor:

“[T]ime of injury,” “occurrence of injury,” or “date of
injury” means:

1.In the case of accidental injury, the date of the accident which caused
the injury.

2.In the case of disease, the date of disability or, if that date occurs
after the cessation of all employment that contributed to the disability, the
last day of work for the last employer whose employment caused disability.

The parties agree that Buczko’s
carpal tunnel syndrome condition was not an “accidental injury” under subd. 1
of this statute.Thus, they further
agree that Buczko’s condition is an occupational disease which must be analyzed
under subd. 2 of the statute.That
subdivision sets out two scenarios for measuring the “time of injury” for an
occupational disease:(1) the date of
disability; or (2) if the date of disability occurs after the cessation of all
employment that contributed to the disability, the date when the employee last
worked for the employer who caused the disability.See § 102.01(2)(g)2, Stats.

Regarding
this second disjunctive clause, we make some important observations.First, this scenario envisions that the
employee is no longer engaged in the employment which contributed to the
disability.While this language does
not require that the employee must no longer be employed, it does require that
the employee is no longer engaged in that contributing employment.Second, if that condition exists, then the
employer which caused the disability is the responsible party and the
last day worked for that employer is the date of disability.[3]

Although the parties agree that
this is an occupational disease case which must be analyzed under subd. 2 of
§ 102.01(2)(g), Stats., they
sharply disagree as to which clause of that subsection governs.Manpower says that LIRC correctly determined
that this case is governed by the first clause of subd. 2 because Buczko’s date
of disability, measured from the first time he was unable to work and sustained
a wage loss, was January 6, 1993¾the date Buczko reported to work at Freedom, but could
not perform his duties and was referred to Austin.

Freedom, however, says that the
second clause of subd. 2 applies because Manpower caused the disability.Freedom’s argument, however, puts the cart
before the horse.Even conceding that
the Manpower employment precipitated the condition, the fact remains that
Buczko’s disability for purposes of the worker’s compensation did not occur
until after he was employed at Freedom.Thus, his disability did not occur “after the cessation of all
employment that contributed to the disability.”See § 102.01(2)(g)2, Stats.This is a
requirement which must be satisfied before we look to whether the employer on
the last day of work caused the disability.See Green Bay Drop Forge, 265 Wis. at 48, 60 N.W.2d at
413-14.

Freedom argues, however, that an
employee may be entitled to disability benefits without having first incurred a
wage loss. We agree.“[W]hile this ‘wage-loss
presumption’ facilitates factual determinations made by the commission, actual
wage loss is not a prerequisite to a finding of disability.”General Cas. Co. v. LIRC, 165
Wis.2d 174, 181, 477 N.W.2d 322, 325 (Ct. App. 1991).However, our agreement with Freedom on this point does not help
its case.The supreme court has
explained that “[it] is the actual or medical or pathological condition of the
worker … that is controlling.”See Kohler
Co. v. DILHR, 42 Wis.2d 396, 403-04, 167 N.W.2d 431, 434 (1969).This, of course, is the controlling question
in many occupational disease cases.“When did the occupational disease ripen into a disabling affliction?”[4]Id. at 400, 167 N.W.2d at 432.

That brings us to the factual
issues in this case.Although the
evidence before LIRC was in conflict, Huibregste’s initial opinions were that
the Freedom deburring employment activity was a substantial factor contributing
to Buczko’s carpal tunnel syndrome and disability.LIRC placed great stock in this evidence and discounted
Huibregste’s later retreat from this opinion.Based on this evidence, LIRC determined that Buczko’s date of disability
occurred during his employment with Freedom.[5]

Regarding Buczko’s Manpower
employment, the ALJ’s findings, as adopted by LIRC, established that Buczko
never complained about his condition and never lost any work time.This evidence supports LIRC’s determination
that Buczko did not suffer a disability while employed by Manpower because his
carpal tunnel syndrome had not yet progressed to the point where it had
“[ripened] into a disabling affliction.”See id.

At
first blush, it may appear unfair to obligate Freedom for Buczko’s worker’s
compensation benefits in light of Buczko’s single day of work as a Freedom
employee.However, the supreme court
spoke to the equities of this situation in a case involving a similar dispute
between successive employers:

The company that had insured the compensation liability at
the time disability occurred is the one that must pay the compensation
awarded.This rule will work no
injustice to any individual carrier or employer because the law of averages
will equalize burdens imposed by this act among the employers and the compensation
insurers of this state.

[2] Because we
reverse the circuit court’s ruling, we need not address Manpower’s further
argument that the circuit court also erred by ordering Manpower to reimburse
Freedom for the payment of Buczko’s benefits.

[3] Thus, when
looking to the cessation of employment, the inquiry is whether thatemployment contributed to the
disability.If so, then the inquiry as
to the last day worked is whether that employer caused the disability.

[4] Thus,
Freedom is incorrect that an employee in Buczko’s situation must have
terminated his or her employment in order to obtain benefits for the
disability.

[5] Although not
expressly addressing Moore’s opinion, it is obvious that LIRC, having accepted
Huibregste’s initial opinion, was also rejecting Moore’s opinion.